People v. Green, 2018 IL App (1st) 143874 (June). Episode 512 (Duration 6:09)

Another gun provision is declared unconstitutuional (this version was in effect before conceal and carry changes).

Gist

Defendant was a security guard who possessed a valid Firearm Owner’s Identification Card, was observed with a holstered weapon across the street from Senn High School in November of 2012.

Charges

He was convicted of two counts of unlawful use of a weapon (UUW) for carrying a loaded, accessible firearm while on a public street and while in a vehicle. 720 ILCS 5/24-1(a)(4), (a)(10). See also the Illinois Crimes Index.

Because he committed those offenses within 1000 feet of a school, he was sentenced on a Class 3 felony. See 720 ILCS 5/24-1(c)(1.5).

Facts

School officials saw defendant standing outside the school in a black uniform and a gun in his holster.

Police were called.

Was This Gun Law Constitutional?

The dispositive issue on appeal is the constitutionality of the 2012 version of section 24-1 of the Code, which provides, in relevant part:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode *** any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions: * * * (iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card; or * * * (10) Carries or possesses on or about his person, upon any public street, *** any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(10) does not apply to or affect transportation of weapons that meet one of the following conditions: (iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card. * * *

(b) Sentence. A person convicted of a violation of subsection 24-1(a)(1) through (5), [or] subsection 24-1(a)(10) *** commits a Class A misdemeanor. *** (c) Violations in specific places. *** (1.5) A person who violates subsection 24-1(a)(4), 24-1(a)(9), or 24­ 1(a)(10) *** on any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1 (West 2012).

Before The Law Change

Defendant was convicted of subsections (a)(4) and (a)(10) before they were amended in 2015 to exclude weapons carried in accordance with the Firearm Concealed Carry Act by someone with a valid license under that act. See Pub. Act 99-29 (eff. July 10, 2015) (amending 720 ILCS 5/24-1).

Felony Conviction

These offenses would ordinarily be Class A misdemeanors, but because they were committed within 1000 feet of a school, they were enhanced to Class 3 felonies, per subsection (c)(1.5).

People v. Chariez

Here, just as in Chairez, the State’s public-interest justification for the firearm restriction within 1000 feet of a school is to prevent crime and protect children, both of which the supreme court acknowledged are “important public concerns.” Id. ¶ 52.

See Episode 457 – People v. Chairez, 2018 IL 121417 (February) (Gun ban prohibiting guns within 1,000 feet of a park found unconstitutional).

Same Poor Rationale

The State argues that the 1000 foot ban is closely tailored to meet this goal, citing various statistics in support of its proposition.

Significantly, the supreme court rejected the relevance of this identical data in Chairez, stating “we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence. The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park.” Chairez, 2018 IL 121417.

The State’s arguments here are based on the same rationale rejected in Chairez.

The data does not reflect that the gun violence plaguing our schools was perpetrated within 1000 feet of the schools (as opposed to inside the schools themselves) or that the perpetrators of that violence were the law abiding adults whose conduct the statute regulates.

Finding

Accordingly, the State has not shown a close fit between the restriction on gun possession within 1000 feet of a school and the protection of children.

Protected Places

In arguing to the contrary, the State cites Heller, in which the Supreme Court stated that nothing in its opinion “should be taken to cast doubt on *** laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” which it described as “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27, n.26 (2008).

But the State conflates regulations banning the carriage of weapons in certain sensitive places (e.g., schools and government buildings) with subsection (c)(1.5), which bans carriage near those places. This distinction is significant.

Areas Near Protected Places

A ban on firearms in specific places imposes less of a burden on the right to bear arms than one that extends to an area of approximately three city blocks around those same places. While a gun owner can simply choose not to enter locations deemed sensitive, it is manifestly more difficult to avoid areas within 1000 feet of those locations, particularly given that there is no notification where the restriction zone begins or ends.

Indeed, the ban at issue here, just as the ban 1000 feet around public parks at issue in Chairez, effectively operates as a total ban on the carriage of weapons for self-defense outside the home in Chicago. See Chairez, 2018 IL 121417, ¶ 55.3 As such, it runs afoul of Aguilar, in which the supreme court held that the right to carry firearms is particularly important when traveling outside the home. See Aguilar, 2013 IL 112116, ¶¶ 19-20.

Holding

For these reasons, we conclude that sections 24-1(a)(4), (c)(1.5) and 24-1(a)(10), (c)(1.5), prohibiting possession of a firearm within 1000 feet of a school are facially unconstitutional.

We further hold that this portion of the challenged statute is severable from the remaining provisions of the statute. Our holding today is narrow in that it addresses only the pre-2015 version of the UUW statute.

We reverse his convictions for unlawful use of a weapon.

The Current Law

The current version of the statute excepts from its reach those who have a valid license under the Firearm Concealed Carry Act. 720 ILCS 5/24-1(a)(4)(iv) (West 2016).

Significantly, the Firearm Concealed Carry Act continues to prohibit the possession of firearms in “[a]ny building, real property, and parking area under the control of a public or private elementary or secondary school” (430 ILCS 66/65(a)(1) (West 2016)), even for those with valid licenses.

At oral argument, counsel for Green did not take issue with the reasonableness of these prohibitions. And so the limited issue presented here is what burdens the legislature may impose on the rights of law-abiding citizens to bear arms on public ways adjacent to school property.

Reluctantly Reverse

Illinois law, as it presently stands, contains no provisions that define a perimeter around sensitive places, like parks and schools, where even those authorized to carry weapons in public may not enter. If not addressed, the price of the right of law-abiding citizens to carry weapons in public will render it necessary to make fortresses out of places like schools, hospitals, churches, and public housing, with little positive effect on public safety. A bullet fired by an armed security guard can as easily kill a child, patient, or worshiper as one fired by a criminal. And although Green was lawfully authorized to carry a weapon, we can conceive of no reason why his right to do so should outweigh the State’s interest in the safety of school children on public ways adjacent to school property, particularly at dismissal time. It is imperative for the legislature to undertake a nuanced, evidence-based study of measures designed to protect our citizens from gun violence in the vicinity of sensitive public places without unnecessarily burdening the exercise of the second amendment rights of those lawfully authorized to carry weapons in public.